EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

ADA: Reasonable Accommodation; ADEA: Disparate Treatment

August 15, 2000

Dear :

This responds to your June 21, 2000, letter concerning the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA).

Your letter refers to an employee with "borderline" mental retardation who has worked for the City for thirty years. You assert that the employee cannot perform the essential functions of his job and that "throughout the years [he has] been allowed to work below satisfactory performance levels." You ask whether the City may "insist that he retire or face termination, based upon unsatisfactory performance."

As you know, the ADA prohibits an employer from discriminating against a qualified individual with a disability on the basis of disability. A "disability" is a physical or mental impairment that substantially limits a major life activity, a record of such an impairment, or being regarded as having such an impairment. A "qualified individual with a disability" is a person with a disability who can perform the essential functions of the position held or desired with or without reasonable
accommodation. An employer must provide reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability unless doing so would be an undue hardship. Reasonable accommodation includes reassignment of an employee to a vacant position for which she or he is qualified.

It is not possible to determine whether the City may force the employee to choose between retirement and termination without an investigation into the particular facts and circumstances of this situation. The City may not use disability as a reason for firing (or forcing the retirement of) the employee if he can perform the essential functions of his position with or without reasonable accommodation. Although you assert that he cannot do so, you do not identify the essential functions or
the employee's alleged performance deficiencies. It is not clear whether the employee's performance in fact has been unsatisfactory and, if so, whether the City can provide a reasonable accommodation that would enable him to perform the essential functions of his position. It also is not clear whether there is a vacant position to which the City can reassign him.

Further, you do not indicate how the City has treated other employees whose work has been unsatisfactory. The City may not treat the employee less favorably than it treats similarly situated employees. Thus, for example, the City could not fire the employee without counseling or warning him about his performance if it has counseled or warned other employees before firing them.

Similarly, it cannot be determined whether the proposed action would violate the ADEA without first performing an investigation. If an investigation revealed that the termination was based on unsatisfactory work performance, then the ADEA would not be violated.

This has been an informal discussion of the issues you raised and does not constitute an official opinion of the Equal Employment Opportunity Commission. Further, our silence on other statements or analyses that may have been presented in your letter should not be construed as agreement with those matters.